How can a boundary dispute arise?
Registration inaccuracies can sometimes occur in the Land Register of Scotland. It is important to be aware of the rules and regulations governing how and if land boundary inaccuracies can be corrected. The Land Registration (Scotland) Act 2012 ("the 2012 Act”) requires the Keeper of the Land Register of Scotland to rectify an inaccuracy that has been brought to their attention. However, there are several requirements that must be met.
Land boundary inaccuracies can occur when:
- The property has been split off from a larger property.
- There has been a mistake in the property description during a transfer.
- Keeper Induced Registration (where the Keeper of the Land Register registers any land not registered in the Land Register) has taken place without consulting the property owner. This could result in a registered title, which is inaccurate.
- A neighbour has registered land in the Land Register of Scotland and has included land that belongs to you.
- Physical boundary does not match the legal boundary on the Land Register of Scotland.
Inaccuracies in property boundaries can lead to boundary disputes. This will occur between neighbouring properties, for example, when a new fence or wall is being erected, a tree, hedge, or fence is introduced or removed, or an extension to a property is being built. They can also arise when maintenance obligations arise, and the extent of the boundary is unclear.
There can also be occasions where you may not be aware of a boundary inaccuracy, and it is discovered during a sale or other conveyancing transaction.
Rectification process criteria
For an inaccuracy in the Land Register of Scotland to be rectified there are certain criteria that must be met.
First, an inaccuracy must be “manifest.” Manifest means perfectly clear and undisputable. Should the parties involved in the boundary dispute not agree that an inaccuracy is manifest, it would likely require to be resolved by an Application the Lands Tribunal.
The manifest inaccuracy will be either in the Title Sheet or the cadastral map. The Title Sheet sets out the position of the title to the land. It may contain inaccuracies such as misstating the land description. The cadastral map is a map of Scotland that is based on an Ordinance map. It shows the title boundaries of the land registered in the Land Register. The cadastral map must be inaccurate so far as it:
- Wrongly depicts or shows what the position is in law or in fact,
- Excludes anything required, by or under an enactment, to be depicted,
- Excludes anything that is required by law to be shown.
- Depicts or shows anything which is not permitted by an enactment.
- Includes anything in the depiction of the land which is not permitted by law.
Second, the inaccuracy must be able to be rectified by the Keeper of the Registers of Scotland. An inaccuracy may be manifest, but it may not be clear as to how it can be rectified. Should the inaccuracy not be clearly fixable, the Keeper cannot rectify it. The Keeper must enter a note identifying the inaccuracy in the title sheet or cadastral map, as appropriate.
What evidence is required to be submitted to the Keeper?
For an application for rectification to be successful, sufficient evidence supporting your claim must be submitted to the Keeper. A notification of inaccuracies form must be completed together with supporting documents. The Keeper will decide, based on the supporting documentation, whether the inaccuracy exists and is “manifest.” Supporting documents could include, for example, a historic deed providing the correct land boundary, a plans report, and neighbouring title deeds.
As the standard for a manifest inaccuracy is very high, not all inaccuracies will be rectified. Should the Keeper turn down the application for rectification, the next step would be appeal to the Lands Tribunal.
How can we help?
If you have any queries as to boundary disputes, or any other issues related to property, please contact a member of our Property and Infrastructure team.
This article was co-authored by Mairead MacDonald, Trainee in the rural property and infrastructure team.